- 2 - AABBdocuments, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of CCpermanent residence shall be permanent residents of Hong Kong. The DDquestion to be decided in this case is whether a foreign domestic helper [“FDH”] can acquire right of abode in Hong Kong pursuant to this article. EEThough this case focuses on the position of the FDH, in the light of the FFlegal submissions advanced before the court, it may also have implications as to other categories of persons specified in Section 2(4)(a) of the GGImmigration Ordinance. HH2.Cases on right of abode often bring about debates amongst IImembers of the public. Since the resumption of sovereignty over Hong JJKong in 1997, there have been several cases of this nature. A decision in a right of abode case would inevitably have social, economic and political KKimpact on the society. It is not surprising that people in Hong Kong are LLconcerned as to the possible outcome. Neither is it surprising that the Government has to prepare for different contingencies based on its MMassessment of the potential impact. NN3.The court respects the freedom of expression of our citizens. OOAt the same time, public discussions on the case often go beyond the legal PPissues which the court can properly resolve in the litigation. Again this is not surprising since the socio-economic and political implications of a QQparticular outcome necessarily transcend the legal analysis of the issues RRbefore the court. SS4.But it is important that such public discussions should not be TTallowed to confuse the proper remit of the adjudicative function of the UUVV

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- 3 - AABBcourt in the case itself. In the performance of his judicial duty, a judge should always focus on, and only focus on, the legal merits of the issues CCwhich he or she has to determine. In this case, what is in issue before me is DDthe constitutionality of Section 2(4)(a)(vi) of the Immigration Ordinance. The submissions of the parties revolve around the proper construction of EEArticle 24(2)(4), in particular, the expression “ordinarily resided”. The FFproper construction of the expression is a question of law which has to be decided by way of legal analysis. My duty is to apply the law in resolving GGthis question without regard to any other arguments based on politics or HHsocio-economic considerations. II5.In the light of the public attention drawn to this case and the JJintensity with which the question of right of abode for foreign domestic helpers have been addressed at various quarters in the public arena, it is KKright that I should state clearly the nature of the judicial process at the LLoutset. As mentioned, I can quite understand why this case generates so much public interest. I have no intention of stopping people from having MMdiscussion on the topic based on their own perspectives. However, what I NNshould not allow to happen is to let such discussion influence this court in the process of judicial adjudication. Unlike the political process, the OOjudicial process is not subject to any lobbying. It is important that judges PPare able to perform their judicial function independently, impartially and fearlessly. Our judicial oath requires judges to serve the Hong Kong QQSpecial Administrative Region conscientiously, dutifully, in full RRaccordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit. SSTTUUVV

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- 4 - AABB6.I say these not because I feel any pressure in the present case. As far as I am aware, the public discussions so far represent different CCviews on the topic held by different persons and none of them seek to DDinfluence this court in the judicial process. But I believe it is opportune that this court should reiterate what I said in the preceding paragraphs as the EEindependence of the Judiciary is fundamental to the confidence in our FFadministration of justice. Therefore, it is important for the general public to understand that this judgment is concerned exclusively with the legal GGmerits of the Applicant‟s arguments. It is NOT a judgment on whether as a HHmatter of social policy FDHs should be given the right of abode. Nor does this court have any power to rewrite Article 24(2)(4). This court‟s duty is IIto construe the Article and apply it in accordance with its true meaning. JJKThe two systems of interpretation and the 1999 Interpretation K7.In respect of the proper approach to the construction of the LLBasic Law, the Court of Final Appeal has laid down the relevant principles MMin several cases. Though the courts in Hong Kong are authorized by Article 158(2) and (3) to interpret the provisions of the Basic Law in NNadjudicating cases, the Standing Committee of the National People‟s OOCongress [“the Standing Committee”] also has the power of interpretation of the Basic Law: Article 158(1) and (3) of the Basic Law and Article 67(4) PPof the Constitution of the People‟s Republic of China. In Lau Kong Yung v QQDirector of Immigration (1999) 2 HKCFAR 300, the Court of Final Appeal acknowledged the power of the Standing Committee to interpret RRthe Basic Law and the binding effect of such an interpretation. This was SSreiterated by Li CJ in Director of Immigration v Chong Fung Yuen (2001) T4 HKCFAR 211 at p.222G, TUUVV

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- 5 - AAB“…where the Standing Committee has made an interpretation of Bthe Basic Law pursuant to its power under art.67(4) of the Chinese Constitution and art.158 of the Basic Law, the courts in CCHong Kong are under a duty to follow it.”DDAt p.222H, it was further accepted that, “that power of the Standing Committee extends to every EEprovision in the Basic Law and is not limited to the excluded provisions referred to in art.158(3).”FF8.In Director of Immigration v Chong Fung Yuen (2001) 4 GGHKCFAR 211, Li CJ referred to the difference between the mainland HHsystem for interpretation of the Basic Law and the common law approach in Hong Kong. Subject to any interpretation already made by the Standing IICommittee, the Court of Final Appeal held that the courts in Hong Kong JJare bound to apply the common law in exercising their power of Kinterpretation, see p.222C to E. KLL9.Thus, there are two different approaches to the interpretation MMof the Basic Law, (a)The mainland system by the exercise of the power of NNinterpretation by the Standing Committee; OO(b)The common law approach applied by the courts in Hong PPKong. QQSince these are different approaches, there could be occasions where different conclusions may be reached under the two approaches. Though RRthe Basic Law was enacted as a mini-constitution for Hong Kong, it is also SSa piece of legislation by the National people‟s Congress of the People‟s Republic of China. Given that most of the drafters of the Basic Law did TTUUVV

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- 6 - AABBnot come from a common law background and judges in Hong Kong are not trained under the mainland system, it was deemed necessary for the CCBasic Law to provide for two systems of interpretation. As decided in Lau DDKong Yung and reiterated again in Chong Fung Yuen, in the event of different answers provided by the two systems, the courts in Hong Kong EEare obliged to follow the interpretations by the Standing Committee. FF10.In 1999, the Standing Committee interpreted Articles 22(4) GGand 24(2)(3) of the Basic Law [“the 1999 Interpretation”] and arrived at a HHdifferent interpretation from the one adopted by the Court of Final Appeal in Ng Ka Ling. In the 1999 Interpretation, apart from dealing with those IItwo articles, the following was also stated, JJ“The legislative intent as stated by this Interpretation, together with the legislative intent of all other categories of Article 24(2) KKof the Basic Law … have been reflected in the “Opinions on the Implementation of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the People‟s Republic of LLChina” adopted at the Fourth Plenary Meeting of the Preparatory Committee for the Hong Kong Special Administrative Region of Mthe National People‟s Congress on 10 August 1996. MAs from the promulgation of this Interpretation, the courts of the NNHong Kong Special Administrative Region, when referring to the relevant provisions of the Basic Law of the Hong Kong Special Administrative Region of the People‟s Republic of China, shall OOadhere to this Interpretation. …”PP11.The effect of these parts of the 1999 Interpretation was QQconsidered in Chong Fung Yuen. At first instance, Stock J (as he then was) held that the only mechanism by which the mainland method of RRinterpretation could have binding impact in Hong Kong is Article 158. SSSince the Standing Committee had not made an interpretation under that article in respect of Article 24(2)(1), these parts were an addendum of the TTUUVV

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- 7 - AABBinterpretation on article 22(4) and 24(2)(3). For further reasons set out in [2000] 1 HKC 359 at p.383, His Lordship concluded that he was not bound CCby those paragraphs. DD12.In the Court of Appeal, counsel for the Director accepted that EEthere had not been any interpretation of article 24(2)(1) and no FFinterpretation of that limb of article 24(2) had been sought (see [2000] 3 HKLRD 661 at p.670C; 675A; 685I) and these parts were relied upon as GGindicating the legislative intent for article 24(2)(1). In the light of that, the HHCourt of Appeal refused to act upon those parts as if they were a binding interpretation by the Standing Committee on article 24(2)(1). IIJJ13.When the case reached the Court of Final Appeal, as stated above, the Chief Justice referred to the binding effect of an interpretation KKof the Standing Committee under Article 67(4) as well as Article 158. LLHowever, because of the concession by the Director that these paragraphs did not amount to a binding interpretation (see (2001) 4 HKCFAR 211 at MMp.223D to E), the court did not act on the same. NN14.In the present case, Lord Pannick QC (who appeared for the OOCommissioner together with Mr Chow SC and Ms Sit) reserved the right to PPre-open the argument on the effect of the 1999 Interpretation when this case reaches a higher level. At first instance, counsel accepted that this QQcourt was bound by the decision of the Court of Appeal in Chong Fung RRYuen that the 1999 Interpretation cannot be prayed in aid as a binding interpretation for Article 24(2)(4). In the light of this, I shall consider the SSissues in the present case on that basis. In accordance with the guidance TTgiven by the Court of Final Appeal in Chong Fung Yuen, in the absence of UUVV

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- 8 - AABBany binding interpretation by the Standing Committee, this court shall apply the common law approach to interpret Article 24(2)(4). CCDDPermanent residents and right of abode EE15.Chapter III of the Basic Law sets out the fundamental rights and duties of the residents of the Hong Kong Special Administrative FFRegion. However, the rights and duties of different categories of persons GGare not exactly the same. The Basic Law classifies the persons in Hong Kong into three different categories, HH(a)Permanent residents; II(b)Non-permanent residents; JJ(c) Persons who are not residents, or in short, non-residents. KK16.Some fundamental rights are only enjoyed by permanent LLresidents: the right to vote and the right to stand for election under Article MM26. Other fundamental rights are enjoyed by all residents and, by reason of Article 41, also by non-residents in accordance with law. NNOO17.The major distinction between permanent and non-permanent resident is, however, the right of abode in Hong Kong. This is provided for PPunder Article 24 of the Basic Law. Permanent residents are entitled to QQobtain permanent identity cards which state their right of abode. Non-permanent residents (and also non-residents) have no right of abode. RRSS18.The distinction between non-permanent resident and non-resident depends on the qualification to obtain the Hong Kong identity TTUUVV

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- 9 - AABBcard. Article 24(4) provides that non-permanent residents shall be persons who are qualified to obtain Hong Kong identity cards in accordance with CCthe laws of the region but have no right of abode. The reference here is to DDidentity cards, not permanent identity cards. EE19.Who can obtain the identity card? This is not set out in the FFBasic Law. Rather, Article 24(4) refers to the laws of Hong Kong for determining who would qualify. The answer is to be found in the GGRegistration of Persons Ordinance [“RPO”] Cap.177 and Registration of HHPersons Regulations [“RPR”]. Section 3 of the RPO requires every person in Hong Kong, unless exempted or excluded, to be registered in IIaccordance with the RPR. Regulation 3 of the RPR requires every person JJin Hong Kong, unless exempted or excluded, to apply to be registered and apply for an identity card within 30 days of his entering Hong Kong. KKL1L20.Exempted persons are those exempted under regulation 25. However, these people can still apply for identity cards if they so desire MMand if the Commissioner allows, see the proviso to regulation 25. NN21.Hence, the only persons not qualified to obtain identity cards OOare the excluded persons specified under regulation 25A. These are, PPbroadly speaking, the Vietnamese refugees and children of Chinese permanent residents of Hong Kong born out of Hong Kong and residing in QQthe meantime in the mainland. RRSS1 The main category is those coming within regulation 25(d): those who are bona fide travellers in transit or those who does not intend to stay for more than 180 days and in possession of valid travel document. TTAnother major category is children under 11, see regulation 25(g). UUVV

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- 10 - AABB22.Right of abode is not defined in the Basic Law. In Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at p.34G, Chief Justice Li CCcharacterized this right as a core right. The substance of that right is spelt DDout in Section 2A of the Immigration Ordinance Cap.115 [“IO”]. It includes the right to land in Hong Kong, the right not to have imposed EEupon him any condition of stay, and the right not to be deported or FFremoved. GG23.In other words, a permanent resident would not be subject to HHany restriction in respect of his or her employment, place of residence and duration of stay in Hong Kong. IIJJ24.Article 24 provides for 6 different categories of persons who shall have the status of permanent residents. At issue in the present case is KKArticle 24(2)(4), LL“Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in MMHong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special NNAdministrative Region.”OO25.There are four elements in Article 24(2)(4): PP(a)Persons not of Chinese nationality; QQ(b)Entered Hong Kong with valid travel documents; RR(c) Ordinarily resided in Hong Kong for a continuous period of not less than seven years; SS(d) Having taken Hong Kong as his or her place of permanent TTresidence. UUVV